And that’s where the meaning of the word when comes in.
This is a class-action case on behalf of immigrants, many of whom served or are serving sentences, or even probation, for minor offenses. One of the lead plaintiffs, Mony Preap, was born to Cambodian parents in a refugee camp; he has lived lawfully in the U.S. since 1981. In 2006, he was convicted on two misdemeanor counts of possessing marijuana—an offense that would have subjected him to mandatory detention. However, immigration authorities did not arrest him then. Instead, he returned to his community and was convicted of battery—which does not trigger the mandatory-detention statute. Immigration and Customs Enforcement at that point took him to a detention center, and he was denied a bond hearing. He was eventually able to show an immigration judge that he was eligible for “cancellation,” and so he has been released.
Another plaintiff, Eduardo Vega Padilla, arrived as a toddler and has been a lawful resident for 52 years; his six grandchildren are all U.S. citizens. He was convicted of controlled-substance offenses in 1997 and 1999, and placed on probation; while he was serving that sentence, he was convicted of possessing an unloaded pistol, then released in 2002. In 2013, ICE agents arrested him at his home. Because of the drug offense, ICE denied him a bond hearing until a district court ordered them to provide one—at which point he won release.
Representing all immigrants arrested under similar circumstances, the plaintiffs argue that if ICE wants to detain an immigrant without hope of bail, it must detain him or her at the moment of release; any other reading of the when in the statute, they say, allows authorities to wait years, and then detain immigrants long after they have successfully returned to their lives. Congress cannot have intended that.
That reading is something like when in this sentence: “When you have completed the quiz, turn in your paper and pencil, and exit quietly.” The government’s reading might seem more like this chestnut: “You’ll understand when you’re older.”
The government argues that Congress, concerned about crimes committed by undocumented aliens, meant to require bondless detention of all “criminal aliens,” full stop. The when clause doesn’t limit this requirement to some subset of “criminal aliens,” it argues; the timing of detention is irrelevant. The brief states:
If somebody gave you a two-sentence shopping list saying “(1) Pick up milk, eggs, and cheese when the store opens”: and (2) “refrigerate the groceries described above,” no sensible person would believe that, if you did not pick up the milk, eggs, or cheese until long after the store first opened, you could leave them out on the counter rather than put them in the refrigerator.
The government points out that four other circuits have rejected the plaintiffs’ reading, permitting detention without bond of even those arrested long after their release. Those opinions, however, do not all agree on how to analyze the statutory language. The First Circuit also considered the issue en banc—meaning in a review by all the judges—and split evenly. That allowed to stand a lower-court order requiring bond hearings. In that case, Judge David Barron, a former Harvard professor, wrote an opinion for himself and two other judges supporting bond hearings. That brief thoroughly discusses the linguistic issue, including footnotes like:
According to linguists, ‘probably the most important thing to understand’ about antecedents ‘is that [antecedents] are not the elements in the text but are those suggested by it, those concepts being evoked or constructed in the reader’s mind.’ Bonnie Lynn Nash-Webber, Anaphora: A Cross-Disciplinary Survey 6 (Apr. 1977).
I loved that opinion, but I am, well, a nerd. Non-nerds should skip it and simply bear in mind that the Court’s decision will subject many immigrants to mandatory detention who might otherwise qualify for temporary freedom.